NEW FOR TUESDAY: Judge Rules Against Berlin EMS Supervisor In Lawsuit, Attorney Says Battle Not Over

BERLIN — The latest salvo in the larger dispute between Berlin and its fire company landed in the town’s favor this week when a visiting Worcester County Circuit Court judge on Monday temporarily dismissed a wrongful termination filed in July by a long-time fire department supervisor, but the representatives for the plaintiff on Tuesday vowed the battle will continue.< ?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office">

In May, the town terminated EMS supervisor Norris Phillip Donohue, Jr. after 23 years on the job after at least two EMS employees filed formal complaints about alleged workplace harassment and discrimination. The allegations of harassment and discrimination in the EMS department of the Berlin Fire Company (BFC) were cited as a primary reason for the town’s decision in August to pull all funding for the entire fire company. However, the BFC alleges the town’s decision to defund it was based on control of the scheduling and operations.

In July, Donohue filed a civil suit against the Mayor and Council, seeking at least $200,000 and alleging the elected officials, through Town Administrator Tony Carson, did not have the authority to terminate, or even discipline, him over allegations of harassment and discrimination. He said that authority wrested with his immediate supervisors, the fire chief and the fire company president.

The suit was filed before the Mayor and Council in August voted to yank roughly $600,000 in municipal funding for the fire department over allegations of workplace harassment and discrimination. Berlin Mayor Gee Williams and town officials from the beginning claimed the decision was rooted in the department’s alleged failure to act on the discrimination and harassment complaints, but fire company officials have countered the issue relates to the Mayor and Council, along with Carson, micromanaging the department in terms of scheduling and control over protocols and procedures.

In a sense, Donohoe’s lawsuit against the town has become a touchstone of sorts in the larger, ongoing dispute between the town and its fire company, which escalated last week when the fire company allegedly waged a write-in campaign to unseat Williams as mayor in the town’s otherwise quiet election. Fire company officials denied having anything to do with the late write-in campaign as the Donohoe’s lawsuit moved forward.

During a motions hearing on Monday, visiting Worcester County Circuit Court Judge David B. Mitchell dismissed Donohoe’s lawsuit without prejudice, but granted the plaintiff 21 days to amend his complaint. As recently as last week, fire company officials said in a statement distributed to residents the case was rooted in the town’s retaliatory actions against the long-time supervisor dismissed last May after 23 years.

“The allegations in that lawsuit include that the town of Berlin terminated the employment of the supervisor as a retaliatory measure for exercising his rights under the town’s personnel manual when he disputed his suspension, which was allegedly related to the discrimination complaints,” the fire company’s statement to town residents last week reads.

However, after Mitchell’s dismissal with conditions on Monday, Berlin officials were claiming victory, asserting the judge’s ruling validated their position.

“The court disagreed and we are pleased the judge has dismissed the action and found the claims against the town did not have merit,” said Williams.

The mayor said this week in a prepared statement the larger battle between the town and its fire company would only be resolved with a change in leadership in the department.

“We look forward to a time when we can resolve this dispute, but only after the Berlin Fire Company has chosen leaders whom have credibility and are willing to be accountable to the community they serve,” said Williams. “Without those two conditions met, we will simply allow the judicial process to follow its due course over time.”

The judicial process will apparently continue as Donohoe’s attorney Robin Cockey said on Tuesday the judge’s ruling was only a setback and promised an amended complaint renewing the suit was in the offing.

“The judge didn’t dismiss the case entirely,” he said. “He left open a leave to amend within 21 days, and while I can’t say at this point what the amended complaint will look like, I can assure you it’s not going away. This case is not over and we’re going to keep on keeping on.”

In 2009, the town and its fire company entered an agreement under which paid EMS personnel were leased to Berlin as a means of making them eligible for state retirement and benefits. Berlin has asserted the “lease” arrangement puts the paid EMS personnel under the direction and supervision of the town and subject to the same personnel policies and employee handbook as other town employees.

When Donohue was named in formal complaints filed by at least two EMS employees with allegations the nature of which have still not been made public, he was suspended without pay for 30 days on April 2 and was informed that upon return to work on May 2, he would be demoted to EMS-paramedic. Donohue then filed a formal grievance about the disciplinary action and was terminated by the town shortly thereafter. At issue is who exactly has the authority to discipline, or in this case terminate, paid EMS personnel.

The complaint says Donohue was shocked by the disciplinary action for a number of reasons. First, since he was hired by the fire department, he had been informed his chain of command was the chief, the president and lastly the Mayor and Council.

Secondly, Donohue alleges in the complaint he was never notified in writing of his alleged actions or inactions after he had been interviewed by the town administrator on April 5 about claims of harassment made by two EMS employees. Finally, in his 23 years of employment with the fire department, Donohue had never received any type of infraction, warning or disciplinary action.

In short, Donohue’s suit against the town’s elected officials alleges the Mayor and Council had no authority to terminate his employment as he is an employee of the fire department and merely leased to the Mayor and Council; his termination was explicitly retaliatory in that it followed immediately upon his grievance; and there were otherwise no grounds for his termination.

In August, however, the town filed a motion to dismiss the suit, or in the alternative, a granting of summary judgment. In short, the town’s motion for dismissal contends it has the authority to discipline or terminate those under the lease agreement with the fire company.

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